The Owners – Strata Plan 52066 v Trudgian & anor [2015] NSWLEC 1017

The Owners – Strata Plan 52066 v Trudgian & anor [2015] NSWLEC 1017

The application was dismissed because the Court was not satisfied on the evidence that T1 was principally on the respondents' land, and was not satisfied to the level required by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 that the roots of either T1 or T2 had caused the damage to the applicant's retaining wall. Even if the jurisdiction were engaged, the evidence showed T1 had been reduced to a stump before the respondents purchased the property, there was no evidence of damage caused by T1 during their ownership, and any possible contribution from T2 was outweighed by multiple other possible or probable contributing factors and the lack of change in the wall condition...

Jurisdiction
Australia
Judgment Date
04 February 2015
Procedural Posture
Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Determination
Outcome
The application is dismissed.
Legal Topics
['damage to Property From Trees' 'retaining Wall Damage' 'whether Tree Situated Wholly or Principally on Adjoining Land' 'sufficiency of Evidence' 'contributing Causes of Damage' 'costs Jurisdiction']
['trees Disputes Between Neighbours' 'property Law' 'civil Procedure'] ['damage to Property From Trees' 'retaining Wall Damage' 'whether Tree Situated Wholly or Principally on Adjoining Land' 'sufficiency of Evidence' 'contributing Causes of Damage' 'costs Jurisdiction']

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Procedural Posture

Class 2 Application Under Part 2 of the Trees (disputes Between Neighbours) Act 2006 / Principal Judgment; Final Determination

Legal Issues

  1. 1 ["Whether T1 was wholly or principally on the respondents' land so that the Trees (Disputes Between Neighbours) Act 2006 applied to it." "Whether the trees concerned had caused, were causing, or were likely in the near future to cause damage to the applicant's retaining wall." 'Whether the applicant had made a reasonable effort to reach agreement with the respondents.' 'Whether any orders should be made for tree removal, trenching, contribution to repair costs, fence costs, planting restrictions, or costs.']

Ratio Decidendi

The application was dismissed because the Court was not satisfied on the evidence that T1 was principally on the respondents' land, and was not satisfied to the level required by s 10(2) of the Trees (Disputes Between Neighbours) Act 2006 that the roots of either T1 or T2 had caused the damage to the applicant's retaining wall. Even if the jurisdiction were engaged, the evidence showed T1 had been reduced to a stump before the respondents purchased the property, there was no evidence of damage caused by T1 during their ownership, and any possible contribution from T2 was outweighed by multiple other possible or probable contributing factors and the lack of change in the wall condition...

Court Disposition

The application is dismissed.

Orders

  • ['The application is dismissed.']